Lawsuits with Pokèmon Go and Witnesses That Are Needed to Win

August 10, 2016

The Pokèmon franchise launched in the 1990’s and quickly became a wildly popular activity. Today, we see the new Pokèmon Go game rising to a similar level of fame and excitement.

If you are unfamiliar with the brand, Pokèmon began as a Nintendo handheld Gameboy video game. The original game and the new Pokèmon Go game are played with a series of cartoon character creatures, which the player must catch (“Gotta catch ’em all”). Pokèmon Go was released in July of 2016 and saw a huge surge of popularity with older millennials, who remember playing the original, and with pretty much everyone else who enjoys the augmented reality, location based, mobile version of the game.

Pokèmon Go, itself, is a mobile app from Niantic Labs, which can be played on cell phones. The player can see the virtual Pokèmon characters on their screens in real world locations, and is tasked with catching as many as possible by navigating their own natural environment. Players are able to catch more Pokèmon by traveling to as many locations as they can, frequently by bicycle or on foot.

To give you an idea of the stretch of the game’s popularity, Pokèmon Go has been downloaded by more people than Tinder has; and Tinder is among the most popular of dating apps.

There are some pros and cons to the contagion of the new Pokèmon Go game. On the pros side, we have a massive number of individuals getting up off the couch and away from their other screens to stretch their legs and exercise in the process of succeeding at this game. In a society that has grown increasingly sedentary with the advancements of technology, it is a breath of fresh air to see a game that encourages its players to get out and about. In the face of this great news, it may be hard to believe that there is a downside. However, on the opposite end of physical exercise, we have the negative effect of physical injuries. People are getting out and exercising with Pokèmon Go, but they aren’t necessarily watching where they’re going.

Thus, we have claims for personal injuries and wrongful deaths aimed at the gaming conglomerate creators of the app. Many are wondering how litigators will be able to demonstrate and prove their cases against the company and what evidence will be used.

Litigations against the Pokèmon Go app will necessitate the use of traditional and new wave expert witnesses. Traditional expert witnesses for personal injury claims will include doctors, human factors professionals, and accident reconstructionists. Yet, there is more to this sort of technology than traditional experts can account for. This means that litigation in Pokèmon Go claims will also require augmented reality experts, a new field with a different perspective on the analysis and strategy of these cases. Beyond this, we’ll see testimonies from experts in software development and computer graphics in Pokèmon Go trials.

Injuries Related to Pokèmon Go

Pokèmon Go is played by navigating real world locations with a smartphone screen that shows a camera view of those locations, with the Pokèmon creatures appearing in the screen as though they are actually there, as an augmented reality technology. Gamers are then able to obsessively collect the little monsters with their phones. Unfortunately, this also results in a plethora of accidental injuries and unusual accidents.

In one of these strange examples of Pokèmon Go related accidents, two men in Encitas, California were playing the game and managed to fall down a cliff. One man fell 50 feet, and the other fell 90 feet. Then, we have the case of a 15 year old who was mistaken for a burglar and shot by a homeowner, when the teen was attempting to access the property to catch a rare Pokèmon. Aside from careless accidents and trespassing, there have also been a number of accidents involving distracted drivers and pedestrians. The game is even being used by criminals to lure their victims into areas where they can be easily robbed. In one case, in Missouri, four armed robbers were using the game to determine when their victims would arrive in a particular isolated location, ideal for their crime.

The popularity and risks associated with the Pokèmon Go game have inspired many government officials to issue warnings to their city, state, and country citizens to be aware of the potential for careless accidents and crimes. Josh Earnest, spokesperson for the White House, expressed that game players should ‘not suspend common sense’ while they play. The Bosnian government has warned that players should be wary of landmines. On the more extreme end of precaution, some governments have banned the game, including Kuwait and Indonesia. Meanwhile, it is now illegal to play Pokèmon Go in Russian churches.

Legal Claims Against Pokèmon Go

When injuries and wrongful deaths occur, is it possible to take legal action against Pokèmon Go? If so, what sort of expert witnesses should testify? In order to prove a claim against the game for wrongful death or personal injury, it would be necessary to demonstrate that Niantic Labs owed a duty of care to the plaintiff or litigant and that they breached that duty, directly causing the injuries or losses. In a wrongful death claim, it would be necessary to provide evidence that negligence on the part of the company caused the death.

Then, there are those who aren’t playing the game, but have still had their lives impacted and disturbed by accidents that resulted from the Pokèmon characters being placed on their property. This opens the door to add to the typical definition of trespassing. Typically, one would have to physically enter someone’s property, without permission, to be trespassing; but it is entirely possible to argue that the game has virtually trespassed on private property.

There is also the tort of nuisance argument. This is an invasion of the reasonable use or enjoyment of personal property, without trespassing. For those who have not encountered physical trespassing, the tort of nuisance argument is another practical approach to litigation.

Here, we come to the question of how litigants could prove their claims against Pokèmon Go and Niantic Labs. Much like any other personal injury claim or wrongful death claim, expert witnesses will be a primary factor in the case. These expert witnesses can include medical professionals and accident reconstructionists as well as economic experts. These experts would be able to explain the injuries, losses, and facts of the case, in detail, shining light on where negligence may have occurred to cause the accident. The economic experts would then be able to establish the merit of the monetary compensation requested in relation to the long term impact of the injury on the financial life of the plaintiff.

Finally, there is another, newer set of experts who should be consulted on cases involving Pokèmon Go related injuries and losses. These are the technical experts, the experts in computerized software and design, virtual gaming, and augmented reality. These are very new fields for expert witnesses, and could be the deciding factors in such litigation. Because augmented reality games are new territory, it will be essential to have new technology experts available to educate the jury on the important and relevant technological factors of the case.

Niantic Lab’s Terms of Service and Arbitration Clause

Potential plaintiffs need to be aware of the terms of service on the Niantic Labs website and on the Pokèmon Go gaming app. These terms of service include a player agreement to be bound by an arbitration clause. The arbitration clause states an agreement to address any disputes or claims through a binding arbitration, rather than a trial in court. There are still some situations where claims can be taken to small claims court, though not in class action lawsuits, and only with certain exceptions to the arbitration clause.

All players do have the right to prevent copyright, trademark, and other intellectual property rights infringement through seeking injunctive relief. Further, players have the right to an Arbitration Opt-Out Notice to litigate other disputes. This means that the player must provide written notice to Niantic Labs within 30 days from the date that he or she accepted the terms, before pursuing litigation, to opt-out of the arbitration agreement.

It is important to understand how this affects the average player of Pokèmon Go. As long as you’ve been playing for less than one month (as is currently and temporarily the case for all players of this new game), you have the ability to opt-out of the arbitration clause. You can also request injunctive relief for intellectual property rights infringement and take legal actions to small claims court. Many are apprehensive about the arbitration clause, but it is good that the public is aware of it, now, while it is not yet too late to take action. Let one of our skilled product liability claim attorneys in Indianapolis help you with your claim.

Above all, Pokèmon Go players must recognize the importance of using common sense while playing the game and remaining aware of their own surroundings. There are many benefits of this augmented reality game, but there are negative consequences to be aware of, as well; and it is up to each player to avoid careless accidents and mistakes while playing.

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